About That “F-Word”: LegCo members being very naughty

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Some think the “F-word” is ruining civil governance in Hong Kong. Thomas Patterson believes there is only going to be more of it in Hong Kong.


Hong Kong’s latest dirty word begins with an “F”. It’s filibuster! And, as some of the territory’s politicians want you to believe, it’s a really, really bad thing.

A recent voice sounding the alarm is pro-establishment legislator Regina Ip Lau Suk-yee (葉劉淑儀), Chairperson of the New People’s Party. In an impassioned SCMP op-ed, she labels pan-democrat amendments and quorum calls in the Legislative Council a “very black comedy that is hurting the core interests of Hong Kong”. Ip sees “dire consequences” in the delays to copyright legislation and to funding measures for the Hong Kong-Zhuhai-Macau Bridge, the Express Rail to Guangzhou and other priority government projects.

Oddly, Ip also suggests that Hong Kong colonials would never have imagined that LegCo’s Rules of Procedure, designed to facilitate discussion, would be “weaponized” in this manner. As LegCo was fully appointed until 1985, Ip’s astonishment raises a weighty question: Does she prefer an orderly and undemocratic LegCo to the present, elected body?


It takes up more time than you think

Her feelings on democracy aside, Ip raises a valid concern. Filibustering does affect the efficiency of legislatures, a point she punctuates by citing the 85 hours and 50 minutes of debate that the 1,000-plus amendments to a 2012 bill required. She might have spared her breath, for delay is precisely the point of filibustering.

Yet filibustering also has advantages. For example, a 2014 Congressional Research Service brief describes it as a consensus-facilitating tool in the US Senate. In this light, filibustering allows majority lawmakers to carry the day, provided they offer some concessions to the minority, a worthwhile action that encourages stability in a pluralistic society.

And despite being a firm opponent of “parliamentary obstructionism”, Arun Jaitley, former minority leader of India’s Bharatiya Janata Party, has previously stated that obstruction is justifiable when users seek to expose an attempt by authorities to subvert legislative accountability.

So Hong Kong Chief Executive Leung Chun-ying might claim that filibustering legislators are “not exercising the duty of a LegCo member”, and his number-two, Carrie Cheng Yuet-ngor, might imply that lawmakers who filibuster are wasting taxpayers’ money, but ultimately, both officials are singing off tune.

Filibustering may be abused, but it is neither inherently “right” nor “wrong”. As experiences of other legislatures demonstrate, it is merely a political tool – one that imposes costs on those involved.


Roads From Rome

If he were alive today, Cato the Younger might have some lessons for Hong Kong’s politicians. In 60BC, this Roman senator, known for his ability to speak all day, successfully defeated a rebate measure for rapacious tax collectors, backed by Crassus, Rome’s richest man. Cato’s preferred tactic was to speak until dusk, the Senate’s closing time. The voluble senator kept “worrying those wretched tax collectors” for three months, states Cicero in one of his Letters to Atticus. Crassus was not amused.

After the tax collectors relented, Cato’s faction insisted on a detailed examination of a bill that would provide settlement land in the Near East to soldiers of the General Pompey, a powerful man the obstructing lawmakers distrusted. The filibusterers won that battle too. Pompey, like Crassus, was not pleased.

Finally, delays of Cato and his allies forced Julius Caesar to choose between receiving an official celebration of his military victories and taking part in the election for Consul, Rome’s highest office. Caesar chose the election.

Upon winning, the famous general took a new version of Pompey’s bill out of the Senate’s hands and put it before the Assembly. Pompey’s soldiers got their land. Caesar then secured relief for Crassus’ tax collectors. Ultimately, Caesar, Pompey and Crassus formed an alliance, or triumvirate, that bypassed the Senate and dominated Roman politics for six years, much to Cato’s dismay.

Almost 2,000 years later, in 1917, US Republican senators were spared their own political crisis, but only because they saw the danger coming. In 1917, they acceded to President Wilson’s demand that the Senate reinstate a cloture rule – removed at the request of a misguided 19th century vice-president. The senators, who had been filibustering Wilson’s proposal to arm merchant ships for the war in Europe, accepted this change due to the president’s successful public portrayal of their obstruction as harmful to national security.

More recently, the same Arun Jaitley cited above described legislative obstructionism as sitting on three axes: rule-compliant or violating, costly or not costly, and surmountable by the majority or not surmountable. He suggests that India’s severe filibustering endures because it is rule-violating, costless, and insurmountable. In fact, he states that obstructionists may even benefit from their actions.


Lessons for Hong Kong

Collectively, these cases throw Hong Kong’s dilemma into stark relief. Above all, Regina Ip’s comments are designed to use Caesar’s and Wilson’s tactics to raise political costs for filibustering pan-democrats.

But, Chief Executive Leung Chun-ying has tried that before. In March 2015, he called on voters to punish pan-democrats in that year’s District Council elections. Unfortunately for Leung, the November elections brought no major changes to the political landscape, and filibustering continues.

If filibustering has such a harmful impact on legislative efficiency, why haven’t the filibusterers suffered the costs? The possibilities are numerous.

First, unlike in India’s parliament, recent LegCo filibustering is primarily rule-compliant. For instance, majority pro-establishment lawmakers have nobody to blame but themselves if members cannot achieve a quorum. This forces filibustering’s opponents to justify their opposition based solely on the perceived value of the legislation involved. It does not hurt the pan-democrats’ cause that the delayed projects Regina Ip mentions are all highly controversial.

Second, the pan-democrats announced a campaign of noncooperation in 2014 in order to secure compromise on political reform, while subsequent filibuster attempts have targeted bills or funding measures that filibusterers perceive to be lacking in oversight. Just as Jaitley sees an exception in obstruction that exposes government wrongdoing, so might many Hongkongers see an exception in filibustering that exposes systemic unfairness or inadequate checks on executive power.

Third, the government and its pro-establishment backers have shown little willingness to compromise, even over legislation such as the Copyright (Amendment) Bill, which pleases industry bigwigs but has little long-term political value for its official backers. After all, Cato and his allies were sidelined because they continued to filibuster despite gaining some compromises. They failed to quit while they were ahead.

Finally, the multi-year durability of pan-democrat filibustering proves that it has not been easy to surmount. Legco President Jasper Tsang Yok-sing (曾鈺成) might earn cheers from government allies when he shortens debate on legislation, but he has not developed any solutions to repeated filibustering attempts.

Because Hong Kong filibustering is relatively low-cost and hard to overcome, backers of the government’s preferred legislation have few options if they wish to make more rapid progress.

They could compromise enough to reduce the legitimacy of obstruction. Little evidence to date suggests their willingness to take this route.


In Caesar’s footsteps

With Beijing’s help, they might use Caesar’s ultimate tactic of bypassing the existing system. The State Council’s 2014 White Paper on One Country, Two Systems does stress that the central government has “complete jurisdiction” over Hong Kong, making this a real possibility if northern leaders ever bring themselves to stomach the reputation costs of overtly taking control.

Or, they may wait for a change in the political landscape and see some of their priority items fall by the wayside. Unless the public changes its mind on filibustering in the coming months, obstructionism’s opponents may have little choice.

Truth be told, Hong Kong has a big filibuster problem on its hands, and that problem will continue to fester. In the meantime, pretending that a ten-letter “f-word” suggests profanity is just a waste of energy.